Page No.# 1/8 GAHC010225182014 2025:GAU-AS:14511 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./114/2014 JOHN CLEVER G. MOMIN S/O LATE SOMORAJAN CH. MOMIN, R/O VILL. SAORAGHAT, P.O. and P.S. DUDHNOI, DIST. GOALPARA, ASSAM VERSUS STATE OF ASSAM REPRESENTED BY ITS PUBLIC PROSECUTOR 2:SMT. LASHMI CH. MOMIN D/O SRI. MUNISH MARAK VILL- KHRUNGKHRAJANI P.O DAMRA P.S DUDHNOI and DIST- GOALPARA ASSAM. 3:SMT. LASHMI CH. MOMIN D/O-SRI MUNISH MARAK VILL.-KHRUNKHRAJANI P.S.-DUDHNOI DIST.-GOALPARA ASSAM Advocate for the Petitioner : MR.B BORA, MR. S K M ALAMGIR(AMICUS CURIAE),MR.D HALOI,MR. C BORO,MR.M KALITA,MR.N N JHA Advocate for the Respondent : PP, ASSAM, ,MRS.R S CHOUDHURY, BEFORE Page No.# 2/8 HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER Date : 28-10-2025 Heard Mr. B. Bora, learned counsel appearing for the appellant. Also heard Mr. M.P. Goswami, learned Addl. P.P. Assam appearing for the State/ respondent as well as Ms. R.S. Choudhury, learned counsel appearing for the respondent No. 2. 2. The present appeal has been instituted assailing the judgment dated 29-01-2014 passed by the learned Addl. Sessions Judge, Goalpara in Sessions Case No. 16/2013 convicting the appellant, herein, under Section 417 IPC and sentencing him to undergo rigorous imprisonment for 01 (one) year along with payment of fine of Rs. 15,000/- (Rupees Fifteen Thousand), in default to undergo further rigorous imprisonment for 03 (three) months. 3. The prosecution case, in brief, is that the informant had lodged an FIR on 01-10- 2009, inter-alia, alleging therein that she was working as a maid servant in the house of the appellant, herein. It was alleged that on 22-10-2008 at around 11:30 am, when family members of the appellant, were not present in the house, the appellant forcibly committed rape upon her. It is further alleged that the appellant had threatened to kill her if she informed her parents about the incident. In the FIR, the informant had further alleged that the accused had started committing sexual intercourse regularly with her by making false promise of marriage. She projected that she was around 15 years of age and did not know the consequences of such sexual intercourse. In the FIR, it was also brought on record that the informant had become pregnant and the accused wanted to Page No.# 3/8 abort her pregnancy but she refused to do so. It was further projected that a conciliation was attempted in the matter but the appellant, herein, though he admitted that the pregnancy was caused by him to the informant, did not agree for any settlement. The said FIR on being received, the police registered the same as Dudhnoi P.S. Case No. 158/2009 under Section 376/ 417/ 341/ 313/ 511/ 506/ 34 IPC. On conclusion of the investigation in the matter, the police laid charge-sheet against the appellant, herein, under Section 376/ 417/ 313/ 511/ 506 IPC. The case being triable by the court of sessions, the same was committed to the learned Sessions Judge, Goalpara for trial. The learned Trial Court, on perusal of the materials coming on record, framed charge under Section 376/ 417/ 341/ 313/ 511/ 506/ 34 IPC against the appellant, herein. The charge on being read over and explained to the appellant, herein, he having pleaded not guilty and claimed to be tried, a trial ensued in the matter. During the trial, the prosecution examined 08 (eight) witnesses and thereafter, the appellant, herein, was examined under Section 313 Cr.P.C. On conclusion of the trial, the Trial Court upon appreciating the evidences coming on record proceed to acquit the, appellant, herein from the charge under Section 376/ 313/ 506/ 511 IPC and proceeded to convict the appellant, herein, under Section 417 IPC and sentenced him to imprisonment as noticed, hereinabove. The appellant, being aggrieved has instituted the present proceeding. 4. I have heard learned counsel for the parties and also perused the materials available on record. Page No.# 4/8 5. The evidence of the victim who had deposed during the trial as PW-1 reveals that while she was working as a maid servant in the house of the appellant a love affair had started between the victim and the appellant, herein. She further deposed that the appellant had raped her on more than 05 (five) occasions and as a result of which, she become pregnant and delivered one girl child. She further deposed that the appellant, herein, though promised to marry her, but he did not marry and that the case was filed for that reason. The PW-1 further deposed that a girl was born to her in the same year in which she had lodged the case, however, the said girl died after 02 (two) years of her birth on account of her ailments. 6. The PW-2 the mother of the victim deposed that the victim was working as maid servant in the house of the appellant and they had developed love with each other and she further deposed that the appellant had indulged in physical relationship with her daughter for reasons of which her daughter had become pregnant and had delivered a female child who died after 03 years. The PW-2 corroborated the evidence adduced by the victim girl of the promise made by the appellant, herein, to marry her but of not having married the victim. During her cross-examination, the PW-2 deposed that the victim girl had not informed her about the rape committed on her but had informed about the same later on. She deposed that the appellant is a son of a distantly related elder sister. 7. PW-3 deposed that the victim was working in the house of the appellant and a love affair had developed between them. He further deposed that the appellant had made her pregnant and she delivered a female child who died later on. Page No.# 5/8 8. PW-4 is the Medical Officer who had examined the victim, on a requisition made by the police. PW-4 in his evidence deposed that the victim girl was aged about 20 years and that there is no sign of recent sexual intercourse or violence in her private part. He further deposed that victim girl at the time of the examination was carrying a pregnancy of 35 to 37 weeks. 9. PW-5, PW-6 and PW-7 who are independent witnesses had deposed that a discussion/ meeting was held wherein the victim girl had disclosed of she being made pregnant by the accused, herein. 10. The Investigation Officer of the case deposed as PW-8 during trial and in his cross- examination stated that the PW-7 in his statement initially made before him did not tell him that the accused was present in the meeting held but later on he told that the accused was also present in the meeting. The learned Trial Court upon appreciating the evidences coming on record arrived at a conclusion that the age of the victim girl at the time of the incident was above 20 years. By noticing the age of the victim girl to be about 20 years, the learned Trial Court proceeded to consider the evidences coming on record. The learned Trial Court initially considered the charge framed under Section 376 IPC against the appellant, herein. 11. On consideration of the materials coming on record, the learned Trial Court had drawn the following conclusions:- “37.In view of the above, when we turn back to the case in hand, it is seen that even, if the victim, had given her consent on the basis of the said promise, she had surrendered before the accused, knowing very well that her marriage with the accused was impossible. There is nothing to show that the consent was Page No.# 6/8 obtained by the accused by misrepresenting any fact or falsely stating her in any manner. Had the accused obtained the consent by creating a belief, in the mind of the victim that they were married persons or that he had any right to have sex with her; then the consent obtained could have been treated as a consent given under misconception of fact. 38. Admittedly, she (victim) gave consent for the said act. Her stand is that, on being promised to marry, she gave consent. Admittedly, she was a major girl, as asserted by M/O of the case (P/W-4) in his evidence. Therefore, her evidence that she had given consent on the basis of promise to marry is hard to be believed. Therefore, even if, the accused had obtained her consent, on the basis of the said promise, the consent given by her cannot be believed to be given on any misconception of fact. In view of the above discussion and considering entire facts and circumstances of the case, there is no difficulty in understanding that the consent was not obtained under any misconception of fact or fear or injury etc. 39. In view of the attending facts and circumstances of the case, I hold that the consent was not obtained from the victim of the case, who was admittedly a major woman even as per evidence of M/O (P/W-4), under misconception of fact. Therefore, the accused can not be held to be in accused of committing the offence under Section 375 IPC and as such, he can not be convicted under Section 376 IPC. Hence, I hold that prosecution side has failed to prove the offence U/s 376 IPC against the accused beyond reasonable doubt. In the result, accused is acquitted from the said charge U/s 376 of IPC.” 12. A perusal of the conclusions drawn by the learned Trial Court would go to reveal that the appellant, herein, had physical intimacy with the victim, knowing very well that her marriage with the appellant was impossible. The learned Trial Court proceeded to also conclude that there was no material available on record to show that the consent of the victim was obtained by the appellant, herein, by misrepresenting any fact or for falsely stating to her in any manner. The learned Trial Court also concluded that the victim girl had given her consent for physical intimacy and she being a major girl, her evidence that she had given consent on the basis of the appellant’s promise to marry her was hard to believe. The learned Trial Court concluded that in the light of the evidences coming on Page No.# 7/8 record, the consent obtained by the accused from the victim girl, on the basis of promise to marry her, the consent given by the victim girl cannot be believe to be one given on any misconception of facts or fear or injury etc. Having drawn the said conclusion, the learned Trial Court proceeded to acquit the appellant, herein, from the charge under Section 376 IPC. 13. Thereafter, the learned Trial Court took up the charge framed against the appellant, herein, under Section 417 IPC for consideration and without bringing on record any materials to demonstrate that the consent given by the appellant for physical intimacy developed between the victim and the appellant to be based on a misconception of fact, proceeded to convict the appellant, herein under Section 417 IPC. The conclusions drawn by the learned Trial Court, extracted hereinabove, with regard to the charge framed against the appellant under Section 376 IPC having revealed that the consent given by the victim for physical intimacy with the appellant was not obtained by the appellant under any misconception of facts or fear or injury, this Court is of the considered view that the charge under Section 417 IPC would also not be sustainable against the appellant, herein. Even if it is held that the victim girl who is a major had consented to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she became pregnant, the said act cannot be held to be an act induced by misconception of fact. The learned Trial Court having already concluded that the victim girl knew the fact that her marriage with the appellant was impossible since before, the physical intimacy not been projected to be one consented by the victim, under any misconception of fact or fear or injury, the ingredients of Section 417 IPC in the Page No.# 8/8 considered view of this Court is not satisfied and accordingly, the punishment of the appellant, herein, would not be sustainable. 14. In view of the foregoing discussions, this Court is of the considered view that the conviction of the appellant, herein, under Section 417 IPC, in view of the evidences coming on record, would not be maintainable and the same would call for interference. Accordingly, the impugned judgment dated 29-01-2014 along with conviction of the appellant there-under stands set aside. The appellant is set at liberty. The bail bond executed by the appellant stands discharged. 15. With the above observations and directions, this appeal stands allowed. 16. Registry to send back the TCR along with a copy of this order for information and necessary action. JUDGE Comparing Assistant